IQBAL ZAFAR JHAGRA Versus KHALILUR REHMAN

1. SAIDUZZAMAN SIDDIQUI, C.J .---The Chief Election Commissioner (CEC) vide Notification No. F.3(1)/97, Cord (3), dated 23-2-1997 called upon the members of Provincial Assembly of N.-W.F.P. to elect 3 members against the seats, reserved for 'Ulema' 'Technocrats' and other 'Professional' in the Senat for the province of N.-W.F.P. Six candidates, Engineer Iqbal Zafar Jhagra (appellant in C.A. No.659 of 1997), Anwar Kamal Khan (appellant in C.A. No.660 of 1997), Khalilur Rehman (appellant in C.A. No.684 of 1997 and C.A. No.685 of 1997), Syed Iftikhar Hussain Gillani (appellant in C.A. No. 1121 of 1997), Qazi Muhammad Anwar and Muhammad Azam filed their nomination papers for the above three seats of Senate. The Returning Officer of the Senate Election rejected the nomination papers of Anwar Kamal Khan on the ground that he neither qualified as a 'Technocrat' nor as a 'Professional'. However, on an appeal, filed by Anwar Kamal Khan against the order of Returning Officer rejecting his nomination papers, the Chief Election Commissioner reversed the decision of Returning Officer and accepted the nomination papers of Anwar Kamal Khan. After acceptance of the nomination of Anwar Kamal as aforesaid, Muhammad Azam, one of the candidates, withdrew from contest leaving only five candidates in the field. Qazi Muhammad Anwar, a nominee of Awami. National Party and Anwar Kamal and Engineer Iqbal Zafar Jhagra, the two nominees of Pakistan Muslim League (Nawaz Group) were declared elected to the three reserved seats of "Ulema" "Technocrats" and other "Professionals" in the Senate for N.-W.F.P., in the election held on 12th March, 1997.

2. Three separate Election Petitions Nos. 1 to 3 of 1997, challenging the election of Engineer Iqbal Zafar Jhagra and Anwar Kamal, were filed before the Election Tribunal N.-W.F.P. at Peshawar, two by Khalilur Rehman, (Election Petition Nos. 2 and 3 of 1997) and one by Syed Iftikhar Hussain Gillani (Election Petition No.l of 1997).. The Hon'ble Election Tribunal by two separate judgments, dated 23-6-1997, declared the election of Engineer Iqbal Zafar Jhagra and Anwar Kamal Khan void but refused to declare Khalilur Rehman and Syed Iftikhar Hussain Gillani as elected in place of Engineer Iqbal Zafar Jhagra and Anwar Kamal Khan. Consequently, the two seats which became vacant as a result of the order of Election Tribunal, are to be filled through bye-elections.

2. Civil Appeals Nos. 659 of 1997 and 660 of 1997 are filed by Engineer Iqbal Zafar Jhagra and Anwar Kamal Khan respectively, against the orders of Election Tribunal declaring their election as void.

3. Civil Appeals Nos. 684 and 685 of 1997 are filed by Khalilur Rehman, while Civil Appeal No. 1121 of 1997 is filed by Syed Iftikhar Hussain Gillan, against the orders of Election Tribunal declaring the election of Anwar Kamal Khan and Iqtal Zafar Jhagra void but refusing to declare Khalilur Rehman and Syed Iftikhar Hussain Gillani elected in the vacancy of Anwar Kamal Khan and also dismissing the election petition filed by Syed Iftikhar Hussain Gillani summarily under section 44 of the Senate (Election) Act, 1975 (hereinafter to be referred as 'the Act') on account of non compliance of the provisions of section 36 of the Act.

3. We have heard Mr. Shahzad Jehangir, Senior Advocate Supreme Court for Iqbal Zafar Jhagra, Mr. Ibrahim Satti, Advocate Supreme Court for Anwar Kamal Khan, Mr. Fakharuddin G. Ibrahim, Senior Advocate Supreme Court for Khalilur Rehman and Mr. Iftikhar Hussain Gillani appellant in person in the above appeals.

4. Mr. Shahzad Jehangir, the learned Senior Advocate Supreme Court for Iqbal Zafar Jhagra (appellant in C.A. No.659 of 1997) raised the following contentions in support of the appeal:--

(1) That the Houses of Parliament and Provincial Assemblies (Election) Order, 1977, President's (Post Proclamation) Order No.5 of 1977 (hereinafter to be referred as "P.0.5") was one time legislation promulgated to regulate the conduct of election to be held during the period the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as "the Constitution") was suspended, therefore; its provisions did not apply to the Election to the Senate held under the Constitution after its revival, in March, 1997;

(2) That clause (d) in Article 59 was added after clause (c) in the Constitution by Revival of the Constitution of 1973 Order, 1985, Presidential Order No.14 of 1985 (hereafter to be referred as the R.C.O.). This amendment in the Constitution was maintained when the Constitution (Eighth Amendment) Act, 1985 (hereinafter to be referred as the "Eighth Amendment") was passed. On both the occasions the legislature deliberately omitted the Explanation to clause 1(a) of Article 5 of the P.0.5 although it incorporated sub -clause (iv) of clause 1(a) of P.0.5 as clause (d) in Article 59 of the Constitution. Therefore, Explanation appended to Article 5 of P.O. 5 could not be looked into for determining the qualification of 'Technocrats' 'Professionals' or 'Ulema' in Senate Election held after revival of the Constitution;

(3) That P.O. 5 did not qualify to be an Act of Parliament as it was not passed or approved by the Parliament, and therefore, though it may be treated as the existing law by force of Article 270-A of the Constitution, it could not apply as a law envisaged by clause (i) of Article 62 of the Constitution;

(4) That even if Explanation to clause 1(a) of Article 5 of P.O. 5 is treated as the valid law which prescribed the qualifications of 'Technocrats' 'Professionals' and 'Ulema' for election to the reserved seats in the Senate, the qualifications and bio-data of the appellant Iqbal Zafar Jhagra fully justified his election as a 'Technocrat' and or a 'Professional' within the meaning of the Explanation.

5. Mr. Ibrahim Satti, the learned Advocate Supreme Court for Anwar Kamal Khan (Appellant in C.A. No.660/97) while adopting the above submissions of Mr. Shahzad Jehangir, further contended as follows:-

(1) That the nomination paper of Anwar Kamal Khan was rejected by the Returning Officer, but on appeal the Chief Election Commissioner, (CEC) reversed the order of Returning Officer and accepted the nomination paper of Anwar Kamal Khan allowing him to contest the election against the seat reserved for a, professional in the Senate. The order of CEC was not challenged any further by any of the contesting candidates which attained finality. The order of CEC holding Anwar Kamal Khan entitled to contest against the seat reserved for 'Professionals' in the Senate, therefore, could not be reopened by the learned Election Tribunal, which was an authority subordinate to the CEC;

(2) That the learned Election Tribunal disposed of the main issue in the case as the preliminary issue although the issue; "whether the appellant Anwar Kamal Khan was entitled to contest the election as a 'Professional'", was an issue of fact which could not be decided without recording evidence of the parties. The appellant was denied the opportunity to lead evidence in spite of his specific request made in the recrimination filed in Election Petition No. l of 1997 filed by Syed Iftikhar Hussain Gillani;

(3) That the Election Petitions filed by Syed Iftikhar Hussain Gillani and Khalilur Rehman, were both liable to be dismissed summarily as these petitions and the documents filed alongwith them were not verified on oath as required by law;

(4) That the learned Tribunal seriously erred both in law as well as on facts in holding that Anwar Kamal Khan having not practised in the High Court and Supreme Court, could not be considered as a professional, as neither there is any such requirement in law nor such a finding is sustainable on the basis of the evidence on record.

(5) That the learned Tribunal in arriving at the conclusion that Anwar Kamal Khan could not establish himself as a Professional (Advocate) failed to consider his enrollment certificate as an Advocate and his two tenures as an elected representative of his constituency, besides his performance in the UNO as a delegate of Pakistan;

6. In reply to the above contentions of the counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan, Mr. Fakhruddin G. Ibrahim the learned counsel for Khalilur Rehman, contended that the learned Tribunal having reached the conclusion that Iqbal Zafar Jhegra and Anwar Kamal Khan were disqualified from being elected as 'Professionals' or 'Technocrats' against the reserved seats in the Senate, ought to have declared his client elected as he had secured the 3rd highest votes amongst the contesting candidates and was the best qualified candidate on merit amongst the contestants. The teamed counsel further contended that the learned Tribunal by refusing to declare his client elected in place of Anwar Kamal or Iqbal War Jhagra and directing re-election on the vacant seats, acted against the spirit of Constitution as the object of reserving the seats in the Senate for 'Technocrats', Professionals' and 'Ulema' was to provide opportunity to individuals having specialised knowledge and qualifications to seek induction in an elective body without undergoing the normal lengthy and cumbersome process of election.

7. Mr. Iftikhar Hussain Gillani, the appellant in C.A. No. 1121 of 1997 contended that the Tribunal was not justified in non-suiting him on the ground that his petition was not verified in accordance with the law. It is contended by him that the only requirement of Order VI, Rule 15, C.P.C. is, that every pleading shall be verified on oath or solemn affirmation. This provision nowhere required that oath is to be attested/verified by an Oath Commissioner. It is, accordingly, contended that the appellant having verified his election petition and the Annexures on oath, the election petition could not be dismissed by the learned Tribunal on the ground of non compliance of section 36 of the Act, simply for the reason that the oath on the petition and the Annexures was not attested/verified by the Oath Commissioner. The appellant also contended that notwithstanding dismissal of his election petition on a pure technicality, he was entitled to be declared elected on the seat fell vacant as a result of declaration of election of Iqbal Zafar Jhagra and Anwar Kamal Khan, as void. It is contended that at the time the election of Iqbal Zafar Jhagra and Anwar Kamal Khan was declared void, there were only two other candidates in the field, namely, the appellant and Khalilur Rehman, who fulfilled the qualifications of a 'Technocrat' and 'Professional', and therefore, they should have been declared elected against the vacant seats instead of ordering bye-election on them.

8. The learned Deputy Attorney-General, who appeared in the case on Court Notice on behalf of Attorney-General of Pakistan, contended that Explanation in Article 5 of P.O. 5 is not a mere definition of the words "Technocrat', 'Professional' and 'Ulema' but it is to be read as the qualification prescribed for 'Technocrats', 'Professionals' and 'Ulema' for election to the reserved seats in the Senate. The learned Deputy Attorney General, however, added that as P.O. 5 is not an Act of Parliament, the Explanation to Article 5 of P.O 5 cannot be taken into consideration while determining the eligibility of a candidate to contest the Senate Election on the reserved seats for 'Technocrats', 'Ulema' and other 'Professionals' as contemplated under Article 62 (i) of the Constitution. Learned Dy. A.-G. also supported the contention of M/s. Shahzad Jehangir and Ibrahim Satti that the legislature having deliberately not incorporated Explanation to clause 1(a) of P.0.5 while inserting clause (d) in Article 59 of the Constitution, clearly intended that the said Explanation is not to be taken into consideration for deciding the eligibility of a candidate to contest the Senate Elections against the reserved seats of 'Technocrats' 'Professionals' and ' Ulerna' .

4. The controversy in the above appeals revolves round the interpretation of the words 'Technocrat' and 'Professional'. Iqbal Zafar Jhagra and Anwar Kamal Khan were elected as members of the Senate against the seats reserved for 'Technocrats' '.Ulema' and other 'Professionals' as nominees of a political party. Iqbal Zafar Jhagra claimed to be a 'Technocrat' while Anwar Kamal Khan fought election as a 'Professional'. Khalilur Rehman and Iftikhar Hussain Gillani who were also candidates in the Senate Election as independent, alongwith Iqbal Zafar Jhagra and Anwar Kamal Khan for the seats reserved for 'Technocrats' and 'Professionals' lost the election. In their election petitions before the Hon'ble Election Tribunal, Peshawar, Khalilur Rehman and Iftikhar Hussain Gillani asserted that Iqbal Zafar Jhagra and Anwar Kamal Khan were neither 'Technocrats' nor 'Professionals' and as such their election to the seats reserved in the Senate for 'Technocrats' and 'Professionals' was void. The Hon'ble Election Tribunal after analysing the qualifications and bio-data of Iqbal Zafar Jhagra and Anwar Kamal Khan, came to the conclusion that they did not fulfil the qualification of a 'Technocrat' or a 'Professional' as given in the Explanation to Article 5 of P.O. 5 of 1977 and as such their election to the seats reserved in the Senate for 'Technocrats' and 'Professionals' was void. The Hon'ble Tribunal, however, refused to declare Khalilur Rehman or Syed Iftikhar Hussain Gillani as elected in place of Iqbal Zafar Jhagra and Anwar Kamal Khan on the ground that the disqualifications of Iqbal Zafar Jhagra and Anwar Kamal Khan were not so notorious that the votes polled by them in the election be considered as thrown away votes. Accordingly, the Hon'ble Election Tribunal directed filling in of the vacancies of Iqbal Zafar Jhagra and Anwar Kamal Khan through bye-elections.

5. The main thrust of the argument of learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan jointly is, that the expression 'Technocrat' and 'Professional' used in Article 59 (d) of the Constitution is to be interpreted according to its ordinary dictionary meaning and not as defined in the Explanation to Article 5 of P.0.5. In support of their contention, the learned counsel referred to the observations of this Court in Shujaat Hussnain Qureshi v. Raees Ahmad Qureshi (PLD 1988 SC 118) and Rafique Ahmed v. Zia Shahid (1999 SCMR 573).

9. To understand the above argument in its true perspective, it is necessary to examine the legislative history in this regard. Article 59, as it originally stood in the Constitution, contained the following provisions regarding Senate:--

10. 59.--(1) The Senate shall consist of sixty-three members, of whom---

(a) fourteen shall be elected by the members of each Provincial Assembly;

(b) five shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly; and

(c) two shall be chosen from the Federal Capital in such manner as the President may, by Order, prescribe,

(2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote.

(3) The Senate shall not bq subject to dissolution but the term of office of its members shall be four years, half of them retiring every two years, except in the case of the members elected by the members from the Federally Administered Tribal Areas, of whom three shall retire after the expiration of the first two years and two shall retire after the expiration of the next two years:

11. Provided that the term of office of a person elected or chosen to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled. "

12. From reading of the above provision, it is quite clear that originally there was no concept in the Constitution for election to the Senate against any reserved seats for 'Ulema', 'Technocrats' or other 'Professionals'. The Constitution was held in abeyance on promulgation of Martial Law in the country on 5-7-1977. The Chief Martial Law Administrator on 28-7-1977 promulgated P.O. No.5. Article 1(2) of P.O. 5 declared that 'it shall apply only in respect of the forthcoming elections to the Houses of Parliament and Provincial Assemblies. Article 3 of P.0.5 provided that Election to the two Houses of Parliament and the Provincial Assemblies shall be held in the month of October, 1977 on the dates to be notified by the Election Commissioner under the Representation of the People Act or under the Senate (Election) Act, as the case may be. The original provision relating to election to the seats in the senate as contained in Article 5 of P.O.5 reads as follows:--

13. "5. The Senate.--(1) As provided in Article 59 of the Constitution.

(a) the Senate shall consist of sixty-three members , of whom--

(i) fourteen shall be elected by the members of each Provincial Assembly;

(ii) five shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly; and

(iii) two shall be chosen from the Federal Capital in such manners as the President may, by Order, prescribe;

(b) election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote; and

(c) term of office of the members of the Senate shall be four years, half of them retiring every two years, except in the case of the members, elected by the members from the Federally Administered Tribal Areas, of whom three shall retire after the expiration of the first two years and two shall retire after the expiration of the next two years:

14. Provided that the term of office of a person elected or chosen to fill a casual vacancy shall be the unexpired term of the members whose vacancy he has filled.

(2) The members elected or chosen as members of the Senate shall be divided into two groups by drawing lots, the first group consisting of seven members from each Province, three members from the Federally Administered Tribal Areas and one member from the Federal Capital and the second group consisting of seven members from each Province, two members from the said areas and one member from the Federal Capital.

(3) The term of the office of the first group and of the second group shall respectively be two years and four years.

(4) The term of office of persons elected or chosen to succeed the members of the Senate at the expiration of their respective terms shall be four years."

15. The above-quoted provision in P.O. 5 did not alter the original provision in the Constitution relating to total number of seats reserved for Senate, distribution of these seats between provinces, Federally Administered Tribal Areas (FATA) and the Federal Capital Territory, the method of election through proportional representation by means of single transferable vote and the terms of the office of Senators. However, clause (2) of Article 5 of P.O. 5 provided that the elected members of Senate will be divided in two groups by drawing of lots. The first group would consist of 7 members from each province, three members of FATA and one member from Federal Capital Territory. The second group in the Senate, in the like manner, would consist of 7 members from each province, two members from FATA and one member from Federal Capital Territory. The term of the first group was provided in Article 5(3) as two years while that of the second group as 4 years. It was further provided in Article 5(4) (ibid) that the terms of the office of person elected or chosen to succeed the members of Senate at the expiration of their respective terms should be four years. P.O. 5 was amended from time to time by the following Presidential Orders between the period July, 1977 to June 1985:-----

16. President's Order No.6 of 1977, dated 31-7-1977

17. President's Order No.7 of 1977, dated 7-8-1977

18. President's Order No.8 of 1977, dated 31-8-1977

19. President's Order No. 12 of 1977, dated 4-10-1977

20. President's Order No. 17 of 1978 dated 24-9-1978

21. President's Order No.21 of 1978, dated 19-11-1978

22. President's Order No. 12 of 1979, dated 18-8-1979

23. President's Order No. 15 of 1979, dated 19-9-1979

24. President's Order No. 18 of 1979, dated 27-9-1979

25. President's Order No.20 of 1979, dated 8-10-1979

26. President's Order No.8 of 1984, dated 27-10-1984

27. President's Order No. 13 of 1984, dated 5-12-1984

28. President's Order No.2 of 1985, dated 12-1-1985

29. President's Order No.3 of 1985, dated 12-1-1985

30. President's Order No.4 of 1985, dated 12-1-1985

31. President's Order No.7 of 1985, dated 17-1-1985

32. President's Order No.8 of 1985, dated 20-1-1985

33. President's Order No.9 of 1985, dated 20-1-1985

34. President's Order No. 12 of 1985, dated 2-3-1985

35. President s Order No. 16 of 1985, dated 6-3-1985

36. President's Order No. 17 of 1985, dated 7-3-1985

37. President's Order No. 18 of 1985, dated 17-3-1985

38. President's Order No.21 of 1985, dated 19-3-1985

39. President's Order No.22 of 1985, dated 19-3-1985

40. President's Order No.23 of 1985, dated 19-3-1985

41. President's Order No.27 of 1985, dated 29-6-1985"

42. After the Partyless Election of 1985, P.O. 5 was amended through Ordinance I of 1986 which was later converted into an Act of Parliament by Act No. II of 1986.

43. It is not necessary to examine here in detail the effect of all the amendments made in P.O. 5 through the Presidential Orders mentioned above, as all of them are not relevant for decision of the controversy before us in these cases. We will, therefore, only refer to those amendments which have some bearing on the issues raised in the above appeals.

44. The words contained in Article 3 of P.O. 5 that general election in the country will be held in "the month of October, 1977" were omitted by P.O. 12 of 1977. As a result of this omission, the general election in the country scheduled to be held in October, 1977, stood postponed for an indefinite period. Article 3 of P.0.5, after the above amendment, reads as under:--

45. "3. Time of elections.--Elections to the National Assembly and the Provincial Assemblies shall be held and elections to the Senate shall be held as soon as may be thereafter, on dates to be notified by the Commission under the Representation of the People Act, 1976 (LXXXV of 1976), or, as the 'case may be, under the Senate (Election) Act, 1975, with the prior approval of the President."

46. Thereafter, two amendments were made in P.O.5 in the year 1978 and 4 in the year 1979 through P.Os.17 and 21 of 1978 and P.Os.12, 15, 18 and 20 of 1979. The amendments made in 1978 in P.O.5 introduced the concept of separate electorate, fixed the number of seats for Muslim and non- Muslim in the National and Provincial Assemblies, fixed the number of reserved seats for women in the Assemblies and provided for the method of election to the seats reserved for women, besides raising the minimum age of a voter from 18 years to 21 years. The amendments in P.0.5 in the year 1979 mainly related to qualifications and disqualifications of the members of Parliament. No amendments in P.O.5, thereafter, were made between the period from 9-10-1979 to 26-10-1984. P.O.8 of 1984 enacted on 27-10-1984, Omitted clause (2) of Article 1 of P.O.5 which provided that P.O.5 would apply only in respect of forthcoming election to the Houses of Parliament and Provincial Assemblies. After omission of clause (2) of Article 1 of P.O.5, it reads as under:--

47. "Short title, application and commencement.--(1) This Order may be called the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977.

(3) It shall come into force at once."

48. The effect of abovementioned 2 amendments made in Articles 1 and 3 of P.O. 5 was that the restriction contained in Article I (ibid), that the provisions of P.O.5 applied only to the forthcoming elections which were to be held in the month of October, 1977, was no more there, and therefore, P.O. 5 was to be treated as an ordinary legislation applicable to the elections to the Houses of Parliament and Provincial Assemblies generally.

49. P.O. 5 was further amended through Presidential Orders Nos.2, 3 and 4 of 1985, all issued on 12-1-1985. These Presidential Orders amended Articles 4, 7, 10 and 12 of P.O.5 besides substituting a new Schedule in P.O.5 in place of 1st and 2nd Schedule. P.0.5 was again amended through P.O.7 of 1985 promulgated on 17-1-1985 which increased the disqualification period prescribed in Article 10(2)(b)(6) from 5 to 12 years and sub-paragraph (6-a) was omitted. P.Os.8 and 9 of 1985 which were enacted on 20-1-1985 amended Article 11 and Articles 4 and 6 of P.0.5 respectively. Through R.C.O., Article 59 of the Constitution was amended and these amendments in Article 59 were later made part of the Constitution by the passing of the Constitution (Eighth Amendment) Act, 1985 (Act No.XVIII of 1985). Article 59, in its amended form, now reads as follows:-------

50. "59.(1) The Senate shall consist of (eighty-seven) members, of whom---

(a) fourteen shall be elected by the members of each Provincial Assembly;

(b) eight shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly;

(c) three shall be elected from the Federal Capital in such manner as the President may, by Order, prescribe ; and

(d) five shall be elected by the members of each Provincial Assembly to represent Ulema, Technocrats and other Professionals.

(2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote.

(3) The Senate shall not be subject to dissolution but the term of its members, who shall retire as follows, shall be six years:-

(a) of the members referred to in paragraph (a) of clause (1), seven shall retire after the expiration of the first three years and seven shall retire after the expiration of the next three years;

(b) of the members referred to in paragraph (b) of the aforesaid clause, four shall retire after the expiration of the first three years and four shall retire after the expiration of the next three years;

(c) of the members referred to in paragraph (c) of the aforesaid clause, one shall retire after the expiration of the first three years and two shall retire after the expiration of the next three years; and

(d) of the members referred to in paragraph (d) of the aforesaid clause, two shall retire after the expiration of the first three years and three shall retire after the expiration of the next three years:

51. Provided that the term of office of a person elected to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled."

52. On the date the R. C. O. was enacted, P.O.5 was amended by P.O.12 of 1985 and following Article 12-A was inserted after Article 12 in P.O. 5:-

53. "12-A.Bar against membership of a Local Council or Cantonment Board and a House or a Provincial Assembly at the same time.--- If a member of a Local Council or Union Council constituted under any law relating to local Government or of a Cantonment Board constituted under the Cantonment Act, 1924 (II of 1924) is elected to a seat in a House or a Provincial Assembly, he shall, within a period of fifteen days after the declaration of the result for such seat, resign his office of such members or such seat and if he does not so resign, such seat shall become vacant at the expiration of the said period. "

54. On 6th of March, 1985, P.0.16 of 1985 was issued which besides amending Articles 4, 5, 6 and 12-A further amended Article 5 of P.0.5 as follows:-------

55. "3. Amendment of Article 5 P.(P.P) O. No.5 of 1977-----In the said Order in Article 5

(1) in clause (1),------------

(a) in paragraph (a),-----------

(i) for the word "sixty-three" the word "eighty-seven" shall be substituted;

(ii) in sub-paragraph (ii) for the word "five" the word "eight" shall be substituted and the word "and" at the end shall be omitted:

(iii) in sub-paragraph (iii) for the word "two" the word "three" shall be substituted and after the semicolon at the end the word "and" shall be added; and

(iv) after sub-paragraph (iii) amended as aforesaid, the following new sub-paragraph shall be added, namely:-

56. "(iv) five shall be elected by the members of each Provincial Assembly to represent Ulema Technocrat and other Professionals:

(b) for paragraph (c)the following shall be substituted, namely :

(c) the term of office of the members of the Senate, who shall retire as follows, shall be six years:-

(i) of the members referred to in sub-paragraphs (i) and (iv) of paragraph (a), six shall retire after the expiration of the first two years, six shall retire after the expiration of the next two years and seven shall retire after the expiration of the next two years:

(ii) of the members referred to in sub-paragraph (ii), two shall retire after the expiration of the first two years and three shall retire after the expiration of every two years thereafter; and

(iii) of the members referred to in sub-paragraph (iii), one shall retire after the expiration of every two years.

57. Provided that the term of office of a person elected or chosen to fill a casual vacancy shall be the unexpired term of the members whose vacancy he has filled;" and

(c) after clause (c), substituted as aforesaid, the following explanation shall be added, namely--

58. "Explanation ---- in this clause, ----

(a) "aalim" means a Muslim scholar with high qualifications in religious education recognised by the University Grants Commission or having specialised knowledge of Tafseer, Hadith and Fiqh, to his credit and engaged for at least fifteen years in dissemination of these subjects either as an Imam in a Jamia Mosque or as a teacher or researcher in an educational or research institution or as a practitioner in Islamic law;

(b) "technocrat" means a person of nationally or internationally recognised professional competence with at least fifteen years experience and expertise at a high level for administering ,or managing an operational policy-making unit; and

(c) "professional" means a person of distinction with nationally or internationally recognised professional qualifications and practical experience in his specialization by adopting it as his principal calling, vocation or employment".

(2) After clause (i), amended as aforesaid, the following new clause shall be inserted, namely:-

59. "(1-A) A casual vacancy in the office of a member referred to in sub-paragraph (iv) of paragraph (a) of clause (1) shall be filled for the remainder of the term of such member by the members of the Provincial Assembly by' whom such member had been elected electing another person under the said sub-paragraph."

(3) For clauses (2) and (3) the following shall be substituted, namely:-

60. "(2) the members elected or chosen as members of the Senate shall be divided into three groups by drawing lots, the first group consisting of six members from each province, two members from the Federally Administered Tribal Areas and one member from the Federal Capital, the second group consisting of six members from each province, three members from capital and the third group consisting of seven members from each province, three members from the federally administered tribal areas and one member from the Federal Capital," and

(4) in clause (4) for the word "four" the word "six" shall be substituted. "

61. P.O. 17 of 1985 promulgated on 7th March, 1985 further amended Article 10 of P.O. 5 by adding following new clause (4) after clause (3):-

62. "(4) A person shall be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for election to the National Assembly or a Provincial Assembly at the elections held under this Order he has not been elected to such Assembly. "

63. Through P.O. 18 of 1985 enacted on 17-3-1985, the following new sub-paragraph (10) was added after sub-paragraph (9) in Article 10 of P.O.5:-----

64. "(10) he is the husband or she is the wife, or a dependant son or daughter, of a person who holds any office of profit in the service of Pakistan other than an office specified in sub-paragraph (9)."

65. On 19-3-1985, three P.Os. Nos.21, 22 and 23 of 1985 were issued. P.O.21 omitted Articles 20, 21, 22 and 23 from P.O.

5. P.O.22 further amended Article 10 of P.O.5 by adding a new clause (5) after clause (4). A new validation provision was introduced which provided that nomination paper of a person for a Senate seat filed under P.O. 5 or Act LI of 1975, by a person either as a proposer or seconder, who had not taken the oath as a member of a Provincial Assembly, will not be rendered invalid or will not be called in question in any Court or Authority on that ground. P.O.23 omitted sub-paragraph (10) of paragraph .(b) of clause (2) of Article 10, inserted a new Article 11-A after Article 11 and omitted Article 3 which was inserted by P.O. 18 of 1985, from P.O.5.

66. P.O. 27 of 1985 promulgated on 29-6-1985 omitted Article 12-A which was added after Article 12 in P.O.5, by P.O.12 of 1985. By Ordinance I of 1986 promulgated on 14-5-1986 sub-paragraph (7-a) of paragraph (b) of clause (2) of Article 10 in P.O.5 was omitted. Ordinance I of 1986 was later passed by the Parliament as Act II of 1986. The provisions of the Constitution as amended by R.C.O. were enforced from 10th March, 1985 except Articles 6, 8 to 28 (both inclusive) clauses (2) and 2(A) of Article 101, Articles 199, 213 to 216 (both inclusive) and Article 270-A. The proclamation of 5th July, 1977 was revoked on 30th December, 1985 and from that date the remaining provisions of the Constitution, which were not covered under the notification dated 10-3-1985 also came into effect. Therefore, as and from 30-12-1985 the whole of the Constitution is enforced.

6. In view of the abovestated legislative background, we now proceed to examine the status of P.O.5. P.O. 5 was enacted during the period the Constitution was in abeyance. It was initially enforced for the purpose of regulating election to the two Houses of Parliament and Provincial Assemblies during the period the Constitution was not enforced in the country. However, as earlier mentioned the two amendments made in Articles 1 and 3 of P.O.5 had the effect of making it a general law applicable to the election to the two Houses of Parliament and Provincial Assemblies. The Constitution was revived partially on 10th of March, 1985 and the remaining provisions of the Constitution were enforced on 30th of December, 1985. Article 270-A of the Constitution saved all Presidential Orders, Ordinances, Martial Law Regulations, Martial Law Orders enacted between the period from 5th of July, 1977 and 30th of December, 1985. Before examining the effect of Article 270-A of the Constitution on P.O.5, it will be appropriate to refer here the various provisions contained in this Article. Article 270-A of the Constitution which was inserted by P.O. 14 bf 1985 and substituted by Constitution (Eight Amendment) Act, 1985 (Act XVIII of 1985), reads as follows:-----

67. "270-A.-(1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O. No. 11 of 1984), under which, in consequence of the result of the Referendum held on the nineteenth day of December, 1984, General Muhammad Zia-ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O. No. 14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No. 20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O.No.24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent Authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever:

68. Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.

(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever.

(3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent Authority.

69. Explanation.-In this clause, "competent authority" means,----------

(a) in respect of President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the appropriate legislature; and

(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal of amend the same vests under the law.

(4) No suit, prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders, made or sentences passed in exercise or purported exercise of such powers.

(5) For the purposes of clauses (1), (2) and (4) all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.

(6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws.

70. Explanation.--In this Article "President's Orders" include "President and Chief Martial Law Administrator's Orders" and "Chief Martial Law Administrator's Orders".

7. The contention of learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan jointly in the above appeals is that P.O. 5 being one time law and not being an Act of Legislature, had lost its validity under the Constitution, and therefore, while construing the meanings of the words "Technocrats", Professionals" and "Ulema" no reference can be made to the Explanation to Article 5(1)(a) of P.O.5. The learned counsel for Khalilur Rehman and appellant Syed Iftikhar Hussain Gillani, on the other hand, contended that the provisions of P.O.5 were in the nature of permanent statue after the amendment in Articles 1 and 3 of P.O.5 and they were an existing law under the Constitution on the date the elections to the Senate were held in the month of March, 1997. It is, accordingly, contended and was also so held by the learned Tribunal, that the provisions contained in Explanation to Article 5 of P.O.5 governed the qualifications of "Technocrats", Professionals" and "Ulema". The main contention of learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan before us is that the legislature while amending Article 59 of the Constitution through R.C.O., which was adopted through Eighth Amendment, specifically omitted the Explanation which was appended to clause (1)(a) of P.O. 5, and therefore, there was a clear intendment on the part of the legislature not to make the Explanation a part of Article 59 of the Constitution. The above contention of learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan, however, does not appear to be correct. Paragraph (iv) of sub-clause (a) of clause (1) to Article 5, alongwith Explanation was added in P.O.5 through P.O.16 of 1985 which was enacted on 6-3-1985. Prior to the enactment of P.O.16, the R.C.O. which was promulgated on 2-3-1985, added clause (d) in Article 59 of the Constitution. It is, therefore, quite clear that clause (d) (ibid) was added in Article 59, 3 days prior to insertion of paragraph (iv) of sub-clause (a) of clause (1) of Article 5 of P.O.5 alongwith the Explanation. The argument of learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan that the legislature while adding clause (d) in Article. 59 of the Constitution deliberately omitted to insert the Explanation, therefore, does not arise at all as on the date R.C.O. was promulgated and clause (d) was added in Article 59, neither paragraph (iv) of sub-clause (a) of clause (1) of Article 5 to P.0.5 nor the Explanation appended thereto, were on the statute book. On the contrary, it is the other way round as paragraph (iv) of sub-clause (a) of clause (1) of Article 5 is the verbatim of clause (d) of Article 59 of the Constitution. We are, therefore, not impressed with the contention of learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan that the legislature deliberately omitted to make the Explanation a part of Article '59 of the Constitution. The Explanation in Article 5(1)(a)(iv) of P.O.5 having been added alter incorporation of clause (d) in Article 59 of the Constitution through R.C.O., it is quite clear that addition of the Explanation in Article 5 of P.O.5 was a deliberate insertion by the legislature having full knowledge that the words "Ullema", Technocrats" and Professionals" mentioned in clause (d) of Article 59 of the Constitution have not been defined or explained in the Constitution. It may also be mentioned here that after the revival of the Constitution on 30-12-1985, P.O.5 was amended by Ordinance I of 1986 promulgated on 14-5-1986. This Ordinance was later passed as an Act of Parliament being Act II of-1986. If the argument of the learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan, that P.O.5 was only one time law which lost its efficacy and became of no consequences after enforcement/revival of the Constitution, is accepted then there was hardly any justification or necessity for the legislature to have further amended P.O.5 by Ordinance I of 1986 and by Act 11 of 1986. The fact that the legislature even after enforcement and revival of the Constitution continued to amend P.O.5 to update it, would support the conclusion that P.O.5 was not a one time law which became redundant 6r lost its efficacy after the revival of Constitution but it remained in the field as an existing law which governed the elections of two Houses of Parliament and the Provincial Assemblies.

8. The next contention of learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan is that P.0.5 does not qualify as an Act of Parliament, and therefore, it cannot be considered as a law within the meaning of clause (i) of Article 62 of the Constitution. Article 62 of the Constitution prescribes the qualifications for membership of Majlis-e-Shoora (Parliament). The original Article 62 of the Constitution consisted of the present clauses (a)(b)(c) & (i) of Article 62. Clauses (d) to (h) were added later on in Article 62 through R.C.O. on 2-3-1985. Prior to the issuance of R.C.O. these very clauses were inserted as clauses (d) to (h) in Article 10 of P.O.5 by P.O.4 of 1985, which was issued on 12-1-1985. Article 62 of Constitution reads as under:--

71. "62. a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless--

(a) he is a citizen of Pakistan;

(b) he is, in the case of National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll for election to a Muslim seat or a non-Mulsim seat as the case may be in that Assembly;

(c) he is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership;

(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;

(e) he has adequate knowledge of Islamic teachings and practises obligatory duties prescribed by Islam as well as abstains from major sins;

(f) he is sagacious, righteous and non-profligate and honest and Ameen;

(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence;

(h) he has not after the establishment of Pakistan worked against the integrity of the country or opposed the Ideology of Pakistan:

72. Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation; and

(i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament)."

73. Clause (i) of Article 62 (ibid), which is relevant here, states that in 1 addition to the qualifications of members of Nlailis-e-Shoora (Parliament) mentioned in clauses (a) to (h), additional qualifications may be prescribed through an Act of Parliament. Clause (d) of Article 59 of the Constitution states that 5 members in the Senate will be elected by each Provincial Assembly to represent Ulema, Technocrats and other Professionals. Article 62(i) of the Constitution provides that besides the qualifications mentioned in clauses (a) to (h) of Article 62, other qualifications could be prescribed through an Act of the Parliament. We have already reached the conclusion that P.O.5 is an ordinary legislation which applied to the election of Houses of Parliament and Provincial Assemblies. In these circumstances, we are inclined to hold that Explanation to Article 5(1)(a)(iv) of P.O.5 which defines "Technocrats", Professionals" and "Ulema" is to be read as a provision laying down the qualifications of "Technocrats", Professionals" and "Ulema". The objection of learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan, however is, that P.O.5 cannot be treated as an Act of Parliament as it was neither passed nor ratified by the Parliament. Article 270-A of the Constitution which has been reproduced earlier, was inserted in the Constitution by R.C.O. and was later adopted through Eighth Amendment of 1985. It came into force from 30-12-1985. Under clause (1) of Article 270-A of the Constitution all Presidential Orders, Ordinances, Martial Law Regulations, Martial Law Orders and other laws made between 5th of July, 1977 and the date on which Article 270-A came into force, were affirmed, adopted and declared notwithstanding any judgment of the Court, to have been validly made by the competent authority. Clause (2) of Article 270-A validated all orders and proceedings taken under any Presidential Order, Ordinance, Martial Law Regulation; Martial Law Orders, Enactments, Notifications, Rules, Orders or Bye-Laws promulgated during the period from 5th of July, 1977 to the date Article 270-A came into effect. By virtue of clause (3) of Article 270-A, all Presidential Orders, Ordinances, Martial Law Regulations, Martial Law Orders, Enactments, Notifications, Rules, Orders or Bye-Laws which were enforced on the date Article 270-A came into effect (the date being 30-12-1985) were to remain in force until altered, repealed or amended by the competent authority. It is not disputed before us that after the revival of the Constitution, the legislature did not repeal P.O.5. On the contrary, the legislature through Act II of 1986 which was passed after the revival of the Constitution, amended P.O.5. We are, therefore, in no doubt that P.O.5 is an existing law within he meaning of Article 270-A(3) of the Constitution. An attempt was made in the arguments by the learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan and the learned Dy. A.-G., to demonstrate that provisions of Article 5 of P.O.5 being in conflict with the provisions of Article 59 of the Constitution, the former must give way to the latter. Reference in this behalf was made to the terms of the office of members of the Senate given in clause (c) (1) (ii) and (iii) of P.0.5 and sub-clauses (a) to (d) of clause (3),of Article 59 of the Constitution. It is true that the term of the office of members of Senate given in Article 59 (3) (a) (b) (c) and (d) is different from the one given in Article 5(1) (c) (i) (ii) and (iii) of P.0.5, and therefore, the term of the office of members of Senate given in Article 5 (1) (c) (ii) and (iii) is to be ignored being in conflict with the term of office mentioned in Article 59 (3) (a) (b) (c) and (d) of the Constitution. However, for the above inconsistency, the whole of Article 5 of P.O.5 cannot be struck down. The learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan also argued that Explanation to Article (5) (1) (a) not being incorporated in Article 59 of the Constitution, it should be treated as an inconsistency between the provision of the Constitution and the subordinate legislation. We are unable to accept this contention. The omission to incorporate Explanation to Article 5 (1) (a) of P.O.5 into Article 59 of the Constitution cannot be treated as an inconsistency as Article 62 (i) of the Constitution itself provides that additional qualifications of the members of Parliament can be prescribed through an Act of the Parliament.

9. The learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan very vehemently argued that since P.O.5 was not enacted by the legislature, it could not be considered as an Act of Parliament. The learned Dy. A.-G. also supported this contention. Under Article 270-A of the Constitution all Presidential Orders, Ordinances, Martial Law Regulations, Martial Law Orders etc. are declared to have been validly made by the "competent authority". Clause (3) of Article 270-A provides that Presidential Orders, Martial Law Regulations, Martial Law Orders etc., which were enforced before the date of enforcement of Article 270-A, shall continue to be in force until altered or repealed by the "competent authority". The Explanation to clause (3) of Article 270-A of the Constitution defines "competent authority" in respect of President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders and Enactments, the appropriate legislature. P.O.5. being a subordinate- legislation dealing with the election process of the Houses of Parliament and Provincial Assemblies, will be deemed to be an Act of Parliament. The contention of the learned counsel for Iqbal Zafar Jhagra and Anwar Kamal Khan that above Explanation having been, placed after clause (3) of Article 270-A will apply only to clause (3) and not to the earlier clauses of Article 270-A, has no merit. The word "competent authority" having been defined in the Explanation to clause (3) of Article 270-A, there appears to be no logical reason to restrict this definition only to clause (3) and not to apply to other clauses of Article 270-A of the Constitution. In view of the definition of the word "competent authority" given in the Explanation to Article 270-A, P.O.5 is to be treated at, par with an Act of Parliament. Having reached the conclusion that P.O.5 is to be treated as an Act of the Parliament, we are of the view that before a person is held eligible to contest election of Senate on the seats reserved for "Ulema" "Technocrats" "Professionals", he must show that he possessed the qualifications mentioned in the Explanation appended to clause (1)(c) of Article 5 to P.O.5.

74. In light of the preceding discussion, we now proceed to determine whether Iqbal Zafar Jhagra and Anwar Kamal Khan possessed the requisite qualifications to seek election against the seats reserved for "Technocrats" and other "Professionals" in the Senate.

10. Iqbal Zafar Jhagra in his appeal (C.A.659/97) has produced his nomination palters at pages 61 to 63 and the documents in support of his qualifications and experiences from pages 68 to 81 of the paper book. The learned counsel for Khalilur Rehman and appellant Syed Iftikhar Hussain Gillani do not dispute the genuineness of these documents, Mr. Iqbal Zafar Jhagra, according to the bio-data given at pages 80 to 82 of the paper book, which is not disputed by the learned counsel for Khalilur Rehman and appellant Syed Iftikhar Hussain Gillani, obtained Bachelor degree in Mechanical Engineering in the year 1969. He was initially employed as Assistant Engineer/Site Engineer, Conforce Limited and was mainly responsible for execution of electrical/mechanical works in the construction of buildings. From 1974 to 1976 he served as Senior Engineer, National Construction Company of Pakistan and his responsibilities included liasion of under execution projects in the North Zone and the Zonal Office. In addition tea this her was also responsible for purchase and movements of construction plants tend equipments. From 1976 till 1981 Iqbal Zafar, Jhagra served as Senior Engineer, Saudi Research and Development Corporation, where he was directly responsible to Senior Vice-President of Construction Division and his responsibilities included preparation of feasibility reports, tendering and evaluation of various construction projects, coordination of under execution construction projects with the head office, planning and scheduling of' various construction activities, rate analyses and progress reports. From August 1982 to 1996 Iqbal Zafar Jhagra remained Managing Director of Contech Limited, a No Limit Construction Company. Besides being registered as a professional engineer with Pakistan Engineering Council, the name of Iqbal Zafar Jhagra is also borne out as life-member of Pakistan Engineering Council. In the case of Ihasnul Haq Piracha v. Wasim Sajjad (PLD 1986 SC 200). this Court interpreted the word "Technocrat" and "Professional" as defined in the Explanation to Article 5 of P,0.5 of the Constitution as follows:------

75. "It follows from the above discussion that where profession or professional has been defined, that definition fully governs the situation. Where it does not, and resort has to be had to its ordinary plain meaning then it should be borne in mind that it is 'vague and neither static nor rigid' in what it conveys. Having found a place in the Constitution itself it is necessary that it should retain its flexibility and adaptability. The scheme of the Explanation under consideration appears to be to emphasize in Explanation (c) professional qualification, its recognition and experience in a specialized area of knowledge, and practice in that particular specialization. In contra-distinction to it there is no mention of qualification in Explanation (b). It talks of professional competence and experience and expertise for administering or managing a unit. Expert has been defined in Black's Law Dictionary as 'one who is knowledgeable in specialized field that knowledge being obtained from either education or personal experience... one who by habits of life and business has particular skill in forming opinion on subject to dispute'. Experience and expertise and absence of use of word qualification in Explanation (b) emphasizes the practical side rather than the academic. We, therefore, agree with the finding that a person without professional qualification but who is otherwise professionally competent, which professional competence is nationally or internationally recognized, can become a 'technocrat' it he fulfils the other conditions in the definition of technocrat.

76. The word 'recognized' has been defined in Black's Law Dictionary as 'actual and publicly known'. The national or international recognition of professional competence of an individual may conic about in ,various forms-direct and indirect. Instances of direct recognition have been noted by the Election Tribunal in the words that follows:

77. 'Recognition is a formal or official act by a university, scat of learning or professional body and I would add to these bodies the Government.'

78. Undoudtedly, instances of direct recognition noted by the Election Tribunal will certainly ex facie establish the competence of the. individual, There, however, appears no particular reason to restrict the recognition only to such direct and formal acts. The indirect recognition at the national level may come about in diverse forms in associating the professionally competent individuals in framing of the policies at the national level. in administering institutions and projects and in representations abroad in a particular speciality.

79. The "high level" should not be restricted to the highest level because it implies a level lower than the highest and higher than the intermediate. The degree of independence and the absence of accountability are tests extraneous to the requirement. We would, therefore, endorse the view taken by the Election Tribunal that 'high level has reference to experience and expertise' and it need not be in the capacity of 'head of ministries. statutory corporations' etc.

80. The above-quoted observations of Shafiur Rahman, J. in the case of Ihsanul Haq Piracha v. Wasim Sajjad were quoted with approval in the cases of Aon Muhammad Khan v. Saeed Qadir (PLD 1987 SC 490), Farooq Hassan v. Mumtaz Ahmad Khan (PLD 1988 SC 237) and Sheikh Rafique Ahmed v. Zia Shahid (1999 SCMR 573).

11. In the light of the abovestated legal position, we now proceed to examine the eligibility of lqbal Zafar Jhagra and Anwar Kamal Khan to contest the election on the scats reserved in the Senate for 'Technocrats' and 'Professionals'. We first take up the case of Iqbal Zafar Jhagra. The learned Tribunal found that he neither qualified as a 'Technocrat' nor as a 'Professional'. The relevant observations of the learned Tribunal in this behalf are as follows:-----

81. "As mentioned earlier the first requirement of the definition of 'Technocrat' is that he must possess nationally or internationally recognised professional competence. The mere fact that the respondent holds a degree of Bachelor of Mechanical Engineering, which is a nationally recognised professional qualification, does not mean that he possesses nationally recognised professional competence. It was held in Ihasanul Haq Piracha v. Wasim Sajjad (PLD 1986 SC 200) as well as Dr. Aon Muhammad Khan v. Lt. Gen. (Recd.) Saeed Qadir and others (PLD 1987 SC 490) that it is not necessary to have academic or professional qualifications for being a technocrat. This would mean that it is not the professional qualification but recognition of competence in the relevant field at the national or international level which determines professional competence. In the case of Dr. Syed Farooq Hassan it was held by the learned Election Tribunal that the respondent Mumtaz Ahmad Khan possessed professional competence because he was the holder of a Diploma in Journalism, which was recognised nationally, and had experience in the field of journalism. The findings were set aside by the Supreme Court of Pakistan with the observations that recognition of competence in the field of journalism was lacking inasmuch as to be managing A.P.P. unit which was private company or serving as a Pakistan Correspondent of reputed Reuter's or as a co-Editor of Iqdam etc. did not and could not satisfy the requirement of the law, of national or international recognition of competence. In the present case the respondent has been serving as an ordinary field Engineer in private companies and the Contech (Pvt.) Limited of which he was the Managing Director also appears to be a common place local private construction company, therefore, it goes without saying that the element of recognition of professional competence in the field of Engineering is altogether missing. It will, thus, follow that the respondent does not fulfil the first requirement.

17. The second requirement pertains to experience and expertise of 15 years for administering or managing an operational or policy making unit. The respondent singularly lacks the requisite experience and expertise because it is evident from his bio-data that he never administered or managed any operational unit i.e. factory or manufacturing or assembling unit or a policy making unit namely a unit charged with the duty of taking policy decisions. His own private construction company namely M/s Contech Limited is too insignificant and local to be so the experience and expertise of the respondent falls short of 15 years because according to the certificate of incorporation the said construction company was incorporated on 17-4-1983 and he had resigned as Chief Executive/Director with effect from 7-12-1996. The second requirement is, thus, not satisfied.

18. The third requirement encompasses the level at which experience and expertise is to be acquired.

-------------------------------------

-------------------------------------

82. 'The respondent never remained associated with a policy-making or operational unit in any capacity, therefore, there is no difficulty in holding that the third requirement is also not satisfied. The conclusion arrived at will not change even if the private construction company of the respondent is assumed to be a policy making unit because he has remained on its Board of Directors for about 13 years and not 15 years. Another insurmountable hurdle in his way is that he has adopted farming as his occupation. In the changed scenario he is obliged to establish his claim of being a 'Technocrat' in the light of the experience and national or international recognition in the field of agriculture instead of Engineering. It will not be out of place to mention here that the respondent in his nomination paper as well as the written statement has taken a firm stance that he was a 'Technocrat'. However, during the course of arguments it was submitted by his learned counsel that he also fell in the category of other 'professionals'. I feel no hesitation in holding that he does not qualify to be a 'professional' for the shortcomings arising from the definition of 'professional' he is not a person of distinction. "

83. We are unable to agree with the above conclusions of the learned Tribunal. 'Technocrat' as defined in the Explanation means a professionally competent person whose professional competence has been recognised either nationally or internationally and he has at least fifteen years' of experience and expertise at a level which may not be the top position but should be above the ordinary level. Therefore; a person may not possess a professional qualification but he may still be covered by the above definition of the 'Technocrat' on the basis of his professional competence and expertise in any specialised field and he fulfils other conditions mentioned in the definition. As against this a "Professional" as defined in the Explanation (i), must possess a professional qualification which is recognised either nationally or internationally (ii) is a man of distinction (iii) has practical experience in some specialised area of knowledge at a high level, (iv) and has been practising in his specialisation making it a main source of his vocation or employment. Iqbal Zafar Jhagrah, undountedly held a Bachelor degree in Mechanical Engineering from a recognised University. He is registered as a 'professional engineer' with Pakistan Engineering Council, a statutory body. He remained as the Managing Director of a Private Limited Company which was incorporated in the year 1982-83 and was also registered as No Limit Construction Company with the Pakistan Engineering Council, until 1-1-1996. He was also accorded life membership of Pakistan Engineering Council. No doubt he started his career as an ordinary Site Engineer with a private construction company in 1970, but within 4 years he joined a well-known nationally and internationally recognised construction company, National Construction Company of Pakistan Ltd. as Senior Engineer. In next two years time he joined in a senior position Saudi Research and Development Corporation (REDEC) and worked with them upto 1981. His release certificate issued by Saudi Research and Development Corporation, Saudi Arabia, shows that he was associated with a number of prestigious building projects in Saudi Arabia in a senior position, After his release from Saudi Research and Development Corporation he set up his construction company which was registered as no limit construction company and he remained its Chief Executive until December, 1996. From the abovenarrated facts, it can safely be said that Iqbal Zafar Jhagra had professional qualification which was nationally recognised, He had acquired a distinctive position in his profession compared to other person having similar' professional qualifications. He had also acquired practical experience at a reasonably high level in the specialised area and that he practised his specialisation and adopted it as his principal vocation and calling. The finding of the learned Tribunal that the element of recognition of professional competence in the field of Engineering is altogether missing appears to be the result of non-consideration of evidence on record which fully established that Iqbal Zafar Jhagra was not only registered as a "Professional" with Pakistan Engineering Council, which is a statutory body, but he was also allowed life membership of the said Council which in our' view amounted national recognition of his status in engineering private company namely M/s. Contech Limited was only a local and insignificant company, does not appear to be correct conclusion as M/s. Contech Limited was registered as No Limited Contractors and executed number of projects, Mails whereof have been filed before the Court which are not disputed. On an overall consideration of the qualifications and experiences of Iqbal Zafar Jhagra, we are of the view that Iqbal Zafar Jhagra fulfilled the qualifications of a "Professional" when he was seeking election to the reserved seats in the Senate.

84. We will now consider the case of Anwar Kamal Khan. The contention of the learned counsel is that he was an Advocate practising at the district level. His nomination papers were initially rejected by the Presiding Officer but on an appeal filed by him, the Chief Election Commissioner reversed the decision and held him to be a "professional" for the following reasons:------ .

85. "4. His non-appearance before High Court and/or the Supreme Court could not be a reason to label him as a Professional of lower degree than the others as there are lawyers who confine their practice to the district level but are professionally eminent. A couple of Supreme Court decisions have interpreted the words 'Professional' and 'Technocrat' in a liberal manner. To hold a person who has been practising for twenty-four years in district as a professional of no consequence would mean a very narrow interpretation of the word 'Professional'.

5. I find no infirmity in the qualification of the appellant for being elected to the seats reserved for the 'Professionals'."

86. The first contention of learned counsel for Anwar Katnal Khan is that the decision of Returning Officer having been upset by the Chief Election Commissioner, and the same having not been challenged by any of the contesting candidates it attained finality, and therefore, this question could not be re-opened in the election petition filed against him. It is also contended by the learned counsel for Anwar Kamal Khan that the election petitions filed by Khalilur Rehman and Syed Iftikhar Hussain Gillani were incompetent as they were not verified in accordance with the provisions of law, and therefore, should have been dismissed summarily. The 3rd contention of learned counsel for Anwar Kainal Khan is that the question whether Anwar Kamal Khan was a "professional" or "technocrat" was a question of fact which could only be decided after allowing opportunity to him to lead evidence in support of his assertion. It is vehemently contended b the learned counsel for Anwar Kamal Khan that the learned Tribunal did shot allow any opportunity to lead evidence to Anwar Kamal Khan on this issue and decided the same as a preliminary issue which has seriously prejudiced his client. It is lastly contended by the learned counsel for Anwar Kamal Khan that on merits, on the basis of documents produced by his client before the learned Tribunal, it was sufficiently established that Anwar Kamal Khan had acquired reasonably high level recognition of his professional qualification as an Advocate which was nationally recognised and as a consequence thereof he was elected more than once and at one occasion he also led a Pakistani Delegation to United Nations Organisation (UNO) where he had the opportunity to address the General Assembly.

87. We will first take up the contention of learned counsel of Anwar Kamal Khan that as a result of the decision of Chief Election Commissioner, the question whether the nomination of Anwar Kamal Khan as a "Technocrat" or "Professional" was competent or not, could not be re agitated in an election petition. The nomination papers of a candidate under Senate (Elections) Act, 1975 (hereinafter be referred as 'the Act') are scrutinized by the Returning Officer under clause (2) of section 13 of the! Act. In case of rejection of nomination papers by the Returning Officer an' appeal against the order lies within 2 days of the scrutiny to the Commissioner and the order passed by the Commissioner on such an appeal is deemed to be the final. Rule 5 of Senate (Elections) Rules, 1975 provides summary disposal of such appeal by the Commissioner. An election petition against a return candidate is filed under section 34 of the Act and the grounds for declaring the election of a returned candidate are given in section 49 of the Act. The procedure for trial of election petition is laid down under sections 36 to 44 of the Act. A careful consideration of the above provisions of the Act will show that the decision of Chief Election Commissioner in an appeal against the decision of Returning Officer rejecting the nomination, papers of a candidate is of summary nature whereas the conduct of a petition after the election of a candidate on the ground of disqualification is full-fledged trial. It is, therefore, quite clear that although the decision with regard to validity of nomination of a candidate may be subject-matter of decision both before the Chief Election Commissioner as well as Election Tribunal but the manner of adjudication in both the cases is different. In the former case, the adjudication by the Chief Election Commissioner on the appeal against the rejection of nomination paper by the Returning Officer, is summary in nature after holding such inquiry as the Chief Election Commissioner may deem fit while in the latter case, the decision on the election petition filed against the successful candidate is a full-fledged trial. Therefore, in our view, the decision by an Election Tribunal after a trial of election petition on the issue whether the candidate was validly nominated or, had the requisite qualification to contest the election, will have precedence over the decision of Chief Election Commissioner on the same issue trade in an appeal directed against the order of rejection of the nomination paper of the candidate by the Returning Officer. In the case of Mukhtar Hussain Shah v. Wasim Sajjad (PLD 1986 SC 178) a similar contention raised in that case was disposed as follows:-----------

88. "The upshot of these statutory provisions is that the challenge to an election is possible only by an Election Petition and further that such Election Petition has tube disposed of by an Election Tribunal appointed by the Commissioner (section 57 of Act LXXXV of 1976 and section 38 of the Act). On no hypothesis can the Commissioner pre-empt the powers and the functions of the Election Tribunal nor do the powers and jurisdiction of the Election Tribunal get affected in dealing with an election dispute, by what the Commissioner has done in the matter of counting or in- deciding an appeal under section 32 of the Act. On this view of the jurisdiction of the Election Tribunal neither Order II, rule 2, C.P.C. nor section 11, C.P.C. can be invoked by the appellant for shutting out an Election Petition. "

89. In the case of Muhammad Afzal v. Muhammad Altaf Hussain (1986 SCMR 1736) this Court while considering the import of subsection (5) of section 4(14) of Representation of People Act which conferred finality on the orders of the Commission passed on appeal against the order of rejection of nomination papers by the Returning Officer, held as follows:-

(2) Finality of an order passed under subsection (5) of section 4(14) of the Act (at the stage of scrutiny of the nomination paper.

90. The contention of the learned counsel for the appellant was that as Legislature does not waste its words nor indulges in redundancy. Then the law provides that an appeal against the decision of the Returning Officer shall be referred to a Judge of the High Court who shall summarily decide it within such time as may be notified by the Commission and 'any order passed thereon shall be final, the implication is obvious'. It will be conclusive between the parties, not liable to be challenged in any other forum or proceedings.

91. The word 'final' has been defined in Black's Law Dictionary as 'last' 'conclusive', 'terminating', 'completed'. It further mentions that in its use in jurisprudence this word is generally contrasted with interlocutory'. Since 1958 at least, this question of finality in election matters has come up to this Court in numerous cases and the sum and substance of all these decisions broadly stated, is that where express authorization exists in favour of two authorities or forums in respect of identical subject the one conferred by superior law prevails over that conferred by inferior law, the judicial adjudication prevails over an executive or administrative determination, the more plenary adjudication prevails over the one which is summary within procedure or in effect. In Imtiaz Ali v. Ghulam Muhammad Butt and others PLD 1958 SC 228 the finality of electoral roll was accepted but nowhere the question of personal disqualification of the candidate himself was in issue. In Sirajul Islam Khan v. Ahsan Ali Mondal PLD 1969 SC 5 the finality of an electoral roll was considered sacred so far as the eligibility of a voter was concerned but nowhere the eligibility to be a candidate at an election was in issue. Similar is the law laid down in Umar Darso Khan v. Muhammad Yousaf and others 1968 SCMR 880, Ghulam Younas Khawaja v. Malik Faizullah and another 1969 SCMR 182. In Mukhtar Hussain Shah v. Wasim Sajjad PLD 1986 SC 178 finality of an order of appeal passed under section 13(5) of the Senate (Election) Act, 1975 was held not to bar the trial of an Election Petition under section 52 of the Act. The finality of an appellate order under rule 16(1) of the Punjab Local Council Election Rules was held in the case of Emmanual Masih v. Punjab Local Councils Election Authority and others 1985 SCMR 729 not to bar an Election Petition under section 24 of the Punjab Local Government Ordinance.

92. Article 14 of the Order provides 'save as provided in Article 13, no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as is provided for in the Representation of the People Act, 1976 (LXXXV of 1976).

93. Article 16 of the Order has a non obtante clause (xx) in the following forwards:-

94. "16. Laws relating to election etc. to apply.--Notwithstanding anything contained in the Constitution, the Senate (Members from Federal Capital) Order, 1973 (P.O. No.12 of 1973), the Electoral Rolls Act, 1974 (XXI of 1973), the Delimitation of Constituencies Act, 1974 (XXXIV of 1974), the Preparation of Electoral Rolls (Federally Administered Tribal Areas) Order, 1975 (P.O. No.l of 1975), the Senate (Election) Act, 1975 (LI of 1975), and the Representation of the People Act, 1976 (LXXXV of 1976), and any rules made thereunder, as for the time being in force, shall in so far as they are not inconsistent with any of the provisions of this Order, apply to the preparation and revision of the electoral rolls, the delimitation of constituencies, the choosing of a member from the Federal Capital and to the conduct of election to the two Houses and the Provincial Assemblies".

95. Subsection (1) of section 68 of the Representation of the People Act, 1976 provides as follows:--

96. "Grounds for declaring election of returned candidate void.--(1) The tribunal shall declare the election of the returned candidate to be void if it is satisfied that:------ .

(a) the nomination of the returned candidate was invalid; or

(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or

(c) the election of the returned candidate has been procured or inducted by any corrupt or illegal practice; or

(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.

97. Keeping in view these provisions of law, it is clear that a challenge to an election is possible only through an election petition triable by a tribunal established for that purpose and that it is within the powers of the tribunal to determine whether the returned candidate was or was not on the nomination day qualified for or was disqualified from being elected as a member in view of such a scheme of the law, the finality referred to and made the basis of the arguments by the learned counsel for the appellant could not stand in the way or be a bar to the jurisdiction and powers of the Election Tribunal. "

98. In view of the above stated legal position, we are of the view that the decision of Chief Election Commissioner reversing the order of Returning Officer and accepting the nomination papers of Anwar Kamal Khan, did not stand in the way of Election Tribunal to adjudicate upon the question of nomination of Anwar Kamal Khan.

99. The next contention of learned counsel for Anwar Kamal Khan is that the question, whether Anwar Kamal Khan was duly qualified to contest as "Technocrat" or "Professional" was a question of fact which could only be decided after evidence was recorded in the case. The grievance of the counsel for Anwar Kamal Khan is that the learned Tribunal decided the issue of qualification of Anwar Kamal Khan as a preliminary issue in the case and did not allow any opportunity to Anwar Kamal Khan to lead any evidence. Rule 7 of Senate (Election) Rules clearly provided that the disqualification of a candidate is to be tried as a preliminary issue in an election petition. Apart M from it, the record before us does not show that Anwar Kamal Khan objected to the trial of the said issue without evidence being recorded in the case. No doubt, Anwar Kamal Khan contended in his appeal before this Court that he was not allowed any opportunity to lead any evidence on this issue but the record before the Tribunal does not indicate that any request was made by the counsel for Anwar Kamal Khan to lead evidence on the question of qualification/disqualification of Anwar Kamal Khan. On the contrary, the order of learned Tribunal in unequivocal terms records that there was consensus between the parties not to lead any evidence on the above issue. The learned counsel for Anwar Kamal Khan very vehemently contended that in the recrimination filed in reply to the election petition of Syed Iftikhar Gilani, Anwar Kamal Khan had specifically requested for opportunity to lead evidence. This may be so, but the occasion for consideration of the request for leading evidence would have arisen only when the recrimination filed by Anwar Kamal Khan in the Election Petition No. l of 1997 was taken up. The learned Tribunal having dismissed the petition filed by Syed Iftikhar Hussain Gillani summarily, the question of any adjudication on the recrimination filed by Anwar Kamal Khan in that petition, did not arise at all. Be that as it may, the material before us does not show that Anwar Kamal Khan ever made any request to the learned Tribunal to lead any evidence on the issue of his qualification, and therefore, the grievance of Anwar Kamal Khan that the issue of qualification of Anwar Kamal Khan was decided without recording evidence is of no avail now. Both Syed Iftikhar Hussain Gillani as well as Khalilur Rehman stated before us that they have no objection to the consideration of documents filed by Anwar Kamal Khan before the Returning Officer and also before this Court to be considered for purposes of determining his qualification. The learned Tribunal while considering the eligibility of Anwar Kamal Khan to contest the Senate Election as Professional in the light of his qualifications and experiences observed as follows:-----

100. "

16. While furnishing the above particulars the respondent had blown hot and cold in the same breath by stating on the one hand that he is an Advocate by profession and on the other that his present occupation is 'Farming' but before adverting to this aspect of the case I am tempted to observe that the striking feature of his bio data is that he is an eminent politician but a non-practising lawyer. Being an Advocate of the lower Courts he never appeared in the High Court or the Supreme Court and his vociferous claim that he had confined his practice to his home District has been rendered dubious by his failure to press into service a list of the cases conducted by him in the lower Courts and non-payment of Income Tax. It cannot be taken for granted he has been conducting cases in the lower Courts of his District since 1973 when he was enrolled as an Advocate. However, even if the claim is assumed to be correct he cannot be called a person of distinction particularly when there is nothing in his bio data or written statement to show that he has conducted any important case or made any contribution to the legal literature. In any case his practice at district level cannot be equated with practical experience at a high level in a specialised area of knowledge. There is also no material on record from which it could be gathered that he has been practising in his specialized field, if any, as his principal calling, vocation or employment, His bio data rather discloses that he is an Advocate in name only. As regards the remaining requirement to be possessed by a person claiming to be professional it is scarcely necessary to mention that he is not a lawyer of national or international repute. Reverting to the dual stance taken by him in his nomination paper it will be enough to say that it leads to the irresistible conclusion that he is a full-time politician, a big landlord but a so-called Advocate. It would, thus; follow that he does not qualify to be a 'Professional'. He also does not meet the requirements of the definition of 'Technocrat' because he neither possesses nationally or internationally recognized professional competence nor experience and expertise of 15 years at a high level for administering or managing an operational or policy making unit. "

101. It is true that to be eligible to contest the election against the reserved seat of a 'Professional' in the Senate, it was not necessary that the appellant (Anwar Kamal Khan) should have practised before the High Court and Supreme Court as an Advocate. It is possible that an Advocate who confines his practice before the lower Courts only, may have attained distinctive position amongst his fellow professionals with his competence and professional skills. Unfortunately the documents filed by Anwar Kamal Khan failed to establish that he adopted the profession of law as his principal calling or vocation. He also failed to establish that while practising in the subordinate Courts he attained any distinctive position which was recognized by his fellow professionals by electing him as their leader in the professional or in any other manner. As rightly pointed by the learned tribunal, there is no evidence in support of the fact that Anwar Kamal Khan ever practised as an Advocate even before lower Courts. The only evidence produced by Anwar Kamals Khan before the learned tribunal as well as before this Court is that he was enrolled as an Advocate for the last over about 20 years. Mere enrolment of an Advocate without having any substantial practice, was of no avail. The learned counsel, on our query, admitted that Anwar Kamal Khan did not pay any income tax on his income arising from the profession, but he was quick to add that being a social worker, he used to conduct the cases of his clients mostly free of charge. We also asked the learned counsel for Anwar Kamal Khan whether his client has produced any material before this Court to show the number of cases conducted by him before the lower Courts. The learned counsel in reply only stated that his client was not given any opportunity to lead evidence in this regard. It is not disputed by the learned counsel for Anwar Kamal Khan that the burden to prove that Anwar Kamal Khan was a 'professional' being an Advocate and that he had attained the requisite level of skill in his profession, was entirely on him. There is nothing on record to show that Anwar Kamal Khan as an Advocate acquired any professional imminence. In these circumstances, the finding reached by the learned Tribunal that Anwar Kamal Khan failed to establish that he was 'Professional' as defined in P.0.5 and was, therefore, not qualified to contest the Senate election against the reserved for 'Professional' is not open to any exception. The last contention of learned counsel for Anwar Kamal Khan in the case is that the petition filed by Syed Iftikhar Hussain Gillani as well as Khalilur Rehman suffered from inherent defects as they were not verified in accordance with law. Syed Iftikhar Hussain Gillani, on the other hand, contended that he had verified his petition and the Annexures on oath as required under the law and, therefore, rejection of his petition on account of non-compliance of section 36 of the Act, was wholly without jurisdiction. It is also contended by Syed Iftikhar Hussain Gillani that the view taken by the learned Tribunal was too technical and he should not have been non -suited on mere technicality.

102. It is not disputed that Syed Iftikhar Hussain Gillani had stated in his petition as well on Annexures that they are verified on oath, but this verification was not attested or verified by any Oath Commissioner or a person duly authorised to administer oath. Section 36 of the Act, which deals with contents of a petition reads as follows:--

103. "Contents of petition.--(1) Every election petition shall contain---

(a) a precise statement of the material facts on which the petitioner relies;

(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and

(c) the relief claimed by the petitioner.

(2) A petitioner may claim as relief any of the following declarations namely--

(a) that the election of the returned candidate is void; or

(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or

(c) that the election as a whole is void.

(3) Every election petition and every Schedule or Annexure to that petition shall be signed by the petitioner and verified to the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings."

104. Subsection (3) of section 36 (ibid) clearly requires that every petition and every Schedule or Annexures shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order 6, Rule 15, C.P.C. which when read with section 39, C.P.C., clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorised in that behalf. It is an 0 admitted position that the petition filed by Syed Iftikhar Hussain Gillani though mentions that it is on oath, the oath was neither verified nor attested by a person authorised to administer oath and as such it could not be said that l requirements of section 36 of the Act were complied with. We have l considered the reasons given by the learned Tribunal in holding that the' petition filed by Syed Iftikhar Hussain Gillani did not comply the provisions of section 36 of the Act and are of the view that these reasons do not suffer) from any legal infirmity.

105. The case of Khalilur Rehman is, however, slightly different. In the case of Khalilur Rehman, the election petition was duly verified on oath as required by law. However, some Annexures filed alongwith it were not verified on oath. The learned Tribunal refused to dismiss the election petition on the ground of non-compliance of the provisions of section 36 of the Act for the following reasons:------

106. "19. In his written statement the respondent has not disputed the verification of the election petition and rightly so because it has been duly verified on oath in terms of Order VI, Rule 15, C.P.C. and the Oath has been attested by the Oath Commissioner who was empowered to do so in view of Rule 5(i), Chapter 12-B of the High Court Rules and Orders Vol. IV. However, the Annexures have admittedly not been verified on Oath but the omission is not fatal as the Annexures neither go to the root of the allegations nor disclose any additional allegation of substantive character or furnish better particulars of allegations made in the petition. Reference in this connection may be made to Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175. Issue No.4 is, therefore, decided against the respondent."

107. The learned counsel cited number of cases from Indian jurisdiction to support his contention that even in cases of partial non-compliance of the rules applicable to filing of election petition, the same should be dismissed. This Court in the case of S.M. Ayub v. Yousaf Shah PLD 1967 SC 486, while considering the effect of section 59(3) of National and Provincial Assemblies (Election) Act, observed as under:------

108. "This brings us to the second question, arising for decision in the case, namely, the effect of the omission of the petitioner-appellant to subscribe his signatures or verification to the documents annexed to the petition. The learned Judges of the High Court commented adversely on the finding of the Tribunal that none of these documents was a 'schedule or annex,' within the meaning of subsection (3) of section 59 of the Act, such as would require to be signed and verified in the manner laid down in the Code of Civil Procedure, under the mandate of subsection (3) of section 59 of the Act. In this connection, they referred to the definition of 'annex' as given in the Law Lexicon. The word 'Annex' is defined as follows in that book:--

109. 'Annex' is to attach at the end, subjoin, affix, as to annex a codicil to a will. In law it implies physical connection which, however, is often dispensed with, when not reasonably practicable. To unite, as a smaller thing to a greater; join; make an integral part of: as, to annex a conquered province to a kingdom--'

110. Having regard to this definition of 'annex', the learned Judges thought that whatever is attached to a petition, would fall within the meaning of 'annex', and as such, would attract the provisions of subsection (3) , of section 59 of the Act. Here again, the learned Judges relied on certain cases, decided in the Indian jurisdiction, on the basis of the Indian Representation of the People Act. This view is strongly contested on behalf of the appellant, by Mr. Rafia Ahmad Sheikh.

111. It is argued with force, on behalf of the appellant, that the documents attached to the petition in the instant case, were merely newspaper cuttings from a paper, called 'Hayat', run malicious untruths, calculated to prejudice the voters against the petitioner appellant. These cuttings had reference to paragraph 10 of the petition, which starts by saying that the respondent to the petition before the Tribunal, had published in the daily 'Hayat', Peshawar, false and malicious news items, arousing religious, social anti-political hatred against the petitioner, details of which were given in' that paragraph. Then follow, in serial order, brief description of the nature of the news items with the dates of their publication and the indication that they would be found in what are described as Annexures to the petition marked with letter 'B', 'B-1', 'C' etc. These cuttings do not really amount to allegations on which the petitioner-appellant was seeking avoidance of the election but they were in the nature of evidence, cited in support of allegations of corrupt or illegal practices such as, if established, could avoid the election. The main petition, it is conceded, is properly signed and verified. Instead of reproducing the contents of the cutting in paragraph 10 of the petition itself, they have been briefly described therein and then collected at the end of the petition. The contents of those cuttings having been characterised in the main petition itself, as malicious untruths, it would be too much to expect the petitioner to verify them in the manner contended for. By 'schedule or annex' mentioned in subsection (3) of section 59 of the Act; is apparently meant such a Schedule and Annexure as either makes additional allegation of a substantive character against the opposite party, or a least furnishes better particulars of the allegations made in the petition, so as to give them the status of substantive grounds of the petition itself. The documents under consideration in the instant case, however, are not of that character and, in our opinion, they should not be understood to fall within the meaning of 'schedule or annex', mentioned in subsection (3) of section 59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the petition and not as substantive grounds or expansion of those grounds. We are, consequently, disposed to hold that the Tribunal was right in finding that the failure of the petitioner to append his, signatures or the verification, required for Schedules and Annexures to the petition, was not fatal to the prosecution of the petition. "

112. We are inclined to follow the law laid down in S.M. Ayub v. Yousaf Shah (supra) and accordingly, hold that the learned Tribunal rightly declined to dismiss the petition filed by Khalilur Rehman challenging the election of Anwar Kamal Khan. The last question agitated by Khalilur Rehman and Syed Iftikhar Hussain Gillani in support of their respective, appeals before us is; that the learned Tribunal having declared the election of Iqbal Zafar Jhagra and Anwar Kamal Khan as void, it would have declared them elected in the vacant seats instead of ordering bye-elections. The learned Tribunal while declining this prayer, held as follows:------

113. "The question of relief now remains to be considered. It was contended by the learned counsel for the petitioner that on the disqualification of the responder the petitioner should be declared to have been elected in his place because; firstly, the nomination papers of the respondents Anwar Kamal Khan and Engineer Iqbal Zaffar Jhagra being invalid only three candidates including the petitioner had remained in the field after the withdrawal of the candidature by Mr.` Muhammad Azam Khan, secondly, the disqualification of the respondent was well-known by virtue of the electoral college being restricted to the members of the Provincial Assembly, therefore, the votes cast in his favour should be deemed to have been wasted and thrown away. I am not persuaded by the contentions. The petitioner had contested the election as an independent candidate and had the appeal of the respondent against the rejection of his nomination paper not been accepted by the Chief Election Commissioner, Mr. Muhammad Azam Khan, who too was a nominee of the Pakistan Muslim League. (N), would not have withdrawn his candidature and would have scored an easy victory. The election was held in accordance with the system of proportional representation by means of the single transferable vote. An attested copy of the Return of Election (Form VI) signed by the Returning Officer is available on record. It discloses that the number of valid votes was 80, the number of members to be elected was 3 and the quota sufficient to secure the return of a candidate was determined as 2001. At the end of the first count the arrangement of valid ballot papers according to first preference recorded for each candidate was as under:---

(1) Engineer Iqbal Zaffar Jhagra 17 x 100 = 1700

(2) Anwar Kamal Khan 20 x 100 = 2000

(3) Khalilur Rehman 11 x 100= 1100

(4) Syed Iftikhar Hussian Gillani 9 x 100 = 900

(5) Qazi Muhammad Anwar 23 x 100 = 2300

114. Qazi Muhammad Anwar, nominee of the Awami National Party, was declared elected. During the second count his surplus to the extent of 286r was transferred, keeping in view the next preference in favour of Engineer Iqbal Zaffar Jhagra but at the end of the count no candidate could be declared elected. During the third count there was no candidate with surplus, therefore, Syed Iftikhar Hussain Gilani being lowest on the count was excluded and in view of the next preference his seven transferable ballot papers were', transferred to the petitioner but even then no candidate could be declared elected. During the fourth count out of three continuing candidates the petitioner being lowest on the Count was excluded and Engineer Iqbal Zaffar Jhagra and Anwar Kamal Khan were declared elected against the remaining two seats. The final result was as under:-----

(1) Qazi Muhammad Anwar 2001

(2) Anwar Kamal Khan 2000

(3) Engineer Iqbal Zaffar Jhagra 1986

(4) Khalilur Rehman 1800

(5) Syed Iftikhar Hussian Gillani 900

22. The election was held on party basis and the respondent Anwar Kamal Khan was a nominee of a major political party, therefore, the votes cast in his favour pursuant to party discipline cannot be deemed to have been thrown away. Besides, in the face of the order of the Chief Election Commissioner whereby the appeal against the rejection of his nomination paper was accepted his disqualification cannot be called notorious which is a condition precedent for declaring the candidate securing the next highest number of votes elected in place of the returned candidate. There is no dearth of case law on the point. In Rashid Ahmad Rahmani v. Mirza Barkat Ali and 2 others PLD 1968 SC 301 it was held that if the factum of disqualification of a successful candidate is not notorious at the time of polling so that voters could have no notice of his disqualification then votes secured by such candidate cannot simply be thrown away and the candidate securing next highest number of votes cannot be declared elected. In Lai Muhammad v. Muhammad Usman 1975 SCMR 409 it was observed that if the disqualification of successful candidate is not notorious the votes polled in his favour will not be thrown away so as to give seat to the candidate with the next highest number of votes. In Junaid Ahmad Soomro v. Haji Mahmoob Ali Bhayo PLD 1986 SC 698 it was ruled that where an Election Tribunal finds that a candidate who secured a majority of votes was disqualified but the fact of his disqualification was not notorious at the time of polling so that voters could have taken notice of such disqualification; votes secured by such candidate cannot simply be thrown away so that the candidate securing next highest number of votes be declared elected in his place and election in such case as a whole must be set aside and re-election ordered."

115. The above reasons given by the learned Tribunal refusing to declare Khalilur Rehman and Syed Iftikhar Hussain Gillani elected against the two seats which fell vacant as a result of declaration of the election of Iqbal Zaffar Jhagra and Anwar Kamal Khan as void, are based on correct application of law laid down by this Court, and therefore, are not open to any exception.

116. As a result of preceding discussion, Civil Appeal No.659 of 1997 is accepted and the order of learned Tribunal impugned therein is set aside. Civil Appeals Nos.660 of 1997, 684 of 1997, 685 of 1997 and 1121 of 1997 are dismissed but in the circumstances of the cases, there will be no order as to costs.

117. MUNAWAR AHMED MIRZA, J.--I have gone through above judgment wherein inter alia impact of President's (Post-Proclamation) Order 5 of 1977 as amended uptodate has been elaborately discussed. Obviously in its original form, above Presidential Order reflected one time action to cater for forthcoming elections as was also discussed by me in case Rafiq Ahmed v. Zia Shahid 1999 SCMR 573. Factually subsequent amendments introduced in President's (Post-Proclamation) Order 5 of 1977 through Presidential Order 18 of 1985; 21 of 1985; 22 of 1985 and 23 of 1985 promulgated on 17th March and 19th March, 1985 causing structural changes in the Original Presidential Order were not brought to notice of said Bench by either side.

118. Now all the aspects resulting from subsequent amending statutes have been skillfully elucidated. It may, however, be seen that conclusion on merit drawn in above judgment of Rafiq Ahmed v. Zia Shahid have not been disturbed.

119. Keeping in view said background and careful examination I agree with the above findings.